In Dunn-Morrell v. Viking Motors, Mr. WCB App. Div. 17-17 (April 19, 2017), the Employee was granted protection of the Act in 2007 for a May 8, 2003, low back and right shoulder injury. She was awarded ongoing total incapacity benefits. The Employee had a low back fusion in November 2010. She underwent further back surgery in December 2013. In April 2014, the Employee filed a Petition for Payment regarding the surgeries. Viking Motors filed a Petition for Review of Incapacity.

In April 2014, the Employee was seen by Dr. Donovan. Under § 312, the Board must adopt the medical findings of the appointed § 312 "Independent Medical Examiner" unless there exists clear and convincing evidence to the contrary. Dr. Donovan found that the effects of the work-related right shoulder injury had ended, that the Employee continues to be subject to the effects of the work injury vis-à-vis the November 2013 sacroiliac fusion, and that the 2013 back surgery was not related to the injury. Dr. Donovan apportioned 90% responsibility for incapacity to nonwork-related conditions. Dr. Donovan issued a supplemental report finding a muscular release surgery was reasonable and proper but that a sacroiliac fusion was not proper.

The Judge adopted Dr. Donovan’s opinion that the effects of the right shoulder injury ended and that ongoing symptoms were related to a subsequent nonwork-related condition. Citing “clear and convincing evidence,” the Judge then rejected Dr. Donovan’s opinion, found that the back surgery was work-related, that the sacroiliac surgery was reasonable and proper, and that the Employee was 66% partially incapcitated due to the effects of the work injury. The Judge granted the Petition for Review and allowed Viking Motors to reduce payments to a 66% partial rate. The Judge also granted the Petition for Payment, finding all bills compensable except for those related to the right shoulder.

On appeal, Viking Motors argued to find that the Judge erred in rejecting some of Dr. Donovan’s opinions. The Appellate Division rule that, to find clear and convincing evidence to contradict § 312 findings, it must look to whether the Judge “could reasonably have been persuaded that the required factual finding was or was not proved to be highly probable” and determine whether “the [Judge] could have been reasonably persuaded by the contrary medical evidence that it was highly probable that record did not support the § 312 findings.”

On the issue of a subsequent nonwork-related condition, the Appellate Division found “[t]he [Judge] did not err when applying Section 201(5) to his factual findings, which are supported by the record evidence.” This, despite the fact that this “subsequent nonwork-related condition” was at one point a component of the work injury.

The decision illustrates the relatively low threshold allowed to reject a binding § 312 medical opinion and the heavy burden an appellant has to modify such a ruling before the Appellate Division. Also interesting is that the right shoulder constitutes a subsequent nonwork-related condition, despite the fact that it was previously part and parcel of the work injury.